Joel Weiner: The rise in reformist prosecutors

Wednesday, September 18, 2019 - 11:25am

Over the past couple years, there has been a surge of progressive candidates running for, and winning, various district attorney positions. These candidates, from New York to Los Angeles, have been advocating for policies that decriminalize drugs and ease up on non-violent offenders with the intent to combat mass incarceration. This recent occurrence is a break from the traditional prosecutor position of being tough on crime and supporting strict criminal penalties. Larry Krasner, the Philadelphia district attorney and one of the first progressive prosecutors in a major city, is widely considered to be at the forefront of this movement. He ran in 2017 for the Democratic nomination in a seven-way race. Despite earning no major newspaper endorsements, Krasner still won the nomination by an almost 18-percent margin and went on to win the general election by about 50 percentage points. 

These elections can be some of the most impactful on the local level because DAs have what is called “prosecutorial discretion,” which gives them almost absolute power in charging someone with a crime. They also structure plea agreements, which is how 97 percent of cases end. Policies like mandatory minimum sentences further increase prosecutors’ power because they eliminate judges’ and juries’ say in sentencing, making the sentence entirely contingent on whichever charge the DA decides to press.

This power, however, can be used to institute reform, which is where progressive prosecutors come in. Rachael Rollins, the district attorney for Boston and surrounding municipalities, ran on creating reformist policies like decriminalizing drug possession and retail fraud and not charging for other low-level crimes. She established multiple diversion programs that do not incarcerate the defendant, but rather place them into a rehabilitation or treatment program. Furthermore, many of these prosecutors act swiftly. Immediately after taking office, Wesley Bell, the current St. Louis DA, fired the prosecutor who was responsible for bringing evidence to the grand jury that declined to indict the police officer who shot and killed Michael Brown in Ferguson in 2014. He also has set up a department to review and investigate past convictions, which is isolated from the rest of the office and reports exclusively to Bell. In announcing this initiative, Bell acknowledged that false convictions happen frequently, and said his role as district attorney should include the responsibility of reviewing cases to limit such occurrences.

Not everyone is happy with such policies. The police union in Chicago criticized Kim Foxx,  the progressive Cook County district attorney, arguing that she should focus on enforcing laws instead of trying to change the policies. Tiffany Cabán ran for the Democratic nomination for district attorney in the Queens borough of New York City on a very progressive campaign, even announcing that she would not prosecute sex workers. She narrowly lost to a slightly less progressive candidate. Critics of these shifts claim reformist measures will allow crime to flourish, arguing that prosecutors should be as tough on crime as possible and that these new policies treat criminals as victims. They also take issue with district attorneys refusing to prosecute certain crimes, saying that it is the legislature’s job to set laws and a prosecutor’s job to enforce them. 

This argument is partially valid. The justice system is predicated on prosecutors and defense attorneys making the strongest arguments on behalf of the people or their client, respectively, which means many high-level crimes should be enforced to the fullest extent possible. That said, a prosecutor’s duty is also to protect the populace, and many progressives have pointed out that the current hard-on-crime philosophy toward low-level offenses like drug possession or shoplifting takes young people who have made mistakes and feeds them into a system that reinforces criminal tendencies. Rehabilitation programs, they argue, will reduce recidivism.

The recent rise in popularity for these progressive prosecutors demonstrates the public’s willingness to accept change. After decades of policy that penalized young people — largely people of color — addressing the need for reformist prosecutors has moved beyond the fringes of the political field. The movement has reached Ann Arbor. Eli Savit, an Ann Arbor native and the current senior legal counsel for the city of Detroit, has announced his candidacy for the 2020 Democratic nomination for DA. Savit is running on progressive values and decriminalizing many low-level offenses. 

Progressive reforms are moving in the right direction. If a progressive criminal justice philosophy becomes more accepted within the mainstream political field, it can change the tendency of the justice system to turn low-level criminals into more violent offenders. That will create a criminal justice system that more effectively prevents crime rather than one that reproduces it. 

That is something to remember when we vote on our district attorneys, because having the ability to choose who controls the criminal proceedings in our respective districts requires us to consider the impact that person will have on our communities. At the center of that analysis should be the question of whether that candidate will distinguish between a young adult who has made mistakes and someone who is a legitimate threat to those around them. 

Joel Weiner can be reached at jgweiner@umich.edu.